Court rules shared parental leave can be paid less than maternity leave

The Employment Appeals Tribunal (EAT) has decided that it is not sex discrimination for employers to pay more to employees on maternity leave than they would to staff on shared parental leave.

In Capita v Ali, the EAT heard a complaint from a father who wanted to take time off to care for his newborn baby following the end of his two weeks’ paternity leave, while his wife returned to work rather than taking her full maternity pay entitlement.

Shared parental leave is a statutory right for employees, which was introduced in 2015. It means that parents can share the 12 months’ leave which was previously only available to women taking maternity leave.

In this case, the employer’s maternity policy said that female employees taking maternity leave would be paid enhanced maternity pay, meaning that they would receive 14 weeks’ full pay. However, its shared parental leave policy provided only for statutory pay for employees, which would amount to £139.58 per week for the father.

The Claimant argued that this was direct sex discrimination, as the only reason why a female employee would be entitled to the higher rate of pay would be that her gender allowed her to take maternity leave rather than shared parental leave. The EAT disagreed, finding that men and women were not in the same situation when it came to taking leave: it thought the purpose of maternity leave was partly to protect the health and wellbeing of a new mother, whereas the purpose of shared parental leave was purely to care for the new baby. For this reason, employers are entitled to treat maternity leave and shared parental leave differently.

However, employers should note that the EAT’s decision was controversial and may be appealed in due course.

In the meantime, the decision is likely to do nothing to increase the take-up of shared parental leave in the UK. It is estimated that only around 2% of eligible fathers have decided to take it since its introduction in 2015, with the vast majority continuing to opt for the traditional maternity/paternity leave provisions.